A UK-based cyberlaw blog by Lilian Edwards. Specialising in online privacy and security law, cybercrime, online intermediary law (including eBay and Google law), e-commerce, digital property, filesharing and whatever captures my eye:-)
Based at The Law School of Strathclyde University . From January 2011, I will be Professor of E-Governance at Strathclyde University, and my email address will be lilian.edwards@strath.ac.uk .

Friday, September 28, 2012

Pangloss was honoured earlier in September to be asked to speak at the launch of the Lisbon Council’s new publication on Intellectual Property and Innovation: A Framework for 21st Century Growth and Jobs, to which I also contributed. The collection is co-edited by Ian Hargreaves far famed writer of the Hargreaves Report, the current major blueprint for UK copyright reform, and the keynote speaker was Nellie Kroes, Vice President of the European Commission (her speech can be found here and has been widely reported as a bright light in the ongoing content wars.)
Multiple photos of the event are also here.

This event was a little unusual , for Pangloss anyway, in that the Lisbon Council had energetically sent out a Belgian surrealist photographer to the home abodes of all the contributors to take pix of us, not only in our natural habitat, but with the intent of showing our true souls :-) Thus Pangloss evocatively had a lovely day out in Edinburgh taking Bart Goossens (the photog) around nice restaurants at the waterfront in Leith (see photo above!), followed by afternoon tea at the Modern Art Gallery and finishing up with dinner in a pub. That's my soul in a bucket :-)

Anyway the resulting photos are so delightful that Bart has offered a deal to us all whereby we can use the photos he took for non-commercial purposes such as web sites (like this!) but agree to negotiate a fee if commercial use is made of the photos thereafter. As I prepare my e-commerce class for 2012/13 this seems a nice example of an open content business model, which will almost certainly generate both profit and goodwill. The photos come from http://www.mbargo.be where offers should be made for reproduction!

Friday, September 21, 2012

EDIT: this piece brought in a lot of reaction, for which I am grateful.
Partly as a result, a rather more tidied version can now be found here which you are suggested to jump to (though do comment here!)

(The title , which I have used in various forms before, recalls J Jonah Jameson, the irascible boss of Peter Parker aka SpiderMan whom JJJ of course famously detested. "Spiderman: Threat or Menace?" was his favourite headline and I have been using it ever since, though perhaps never as appropriately as here.)

Anyway. Section 127 of the Comms Act 2003 , once one of the more obscure provisions of the cybercrime world, has had a good workout lately. Famously, Paul Chambers was accused and convicted of sending "by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character" (s 127 (a)) because he had sent a humorous and frustrated tweet saying : ""Crap! Robin Hood Airport is closed. You've got a week and a bit to get
your shit together otherwise I am blowing the airport sky high!!". (Pangloss can dare quote this in full now the prosecution has been overturned :-)

After a long period of #TwitterJokeTrial campaigning and on the third attempt, an appeal court saw sense and conceded that ""a message which does not create fear or apprehension in those to whom
it is communicated, or who may reasonably be expected to see it, falls
outside this provision [of the 2003 Act]". In other words, a joke issued to the world and indeed accessible with identification by the very people it might offend, is clearly not meant to be taken seriously and thus is neither menace or threat for any reasonable person.

Why then, we might ask, is s 127 drafted so widely? Partly because although it appears to be a modern post-Internet provision , its direct and very close antecedents actually date from long before the Internet era and even before Handyside. These antecedents include the Post Office (Amendment) Act 1935 (and two subsequent PO Acts) - which dealt with messages sent by post and telephone - the British Telecoms Act 1981, and the Telecommunications Act 1984, s 43. Section 127 of the 2003 Act basically repeats the 1984 Act provision wholesale, itself almost a word for word repetition of these earlier Acts, changing only the ambiguous application to any "public telecommunication system" (a necessity following the demise of the state monopoly telephone network and the rise of the Internet, and nicked as a phrase from EC telecoms law) whose definition was debated in Chambers (see further a para or two on..)

This legislative history is narrated in DPP v Collins (para 6), a very interesting decision on s 127, involving a man who made repeated telephone to his local MP's office asking for him to do something about the "black bastards" - or similar terms. He was charged with sending "grossly offensive" messages under s 127. On appeal to the House of Lords, the charge was upheld but the interest for me lies in LJ Bingham's analysis at para 7 of whta s 127 is for.

It is crucial here, parenthetically, to note that s 127 is not a lone legislative bulwark against Internet trolls and harassers. Plenty of other legislation than s 127 is available to deal with content on social networks which appears to offends the public . For example, in another current controversial case, 19-year-old Azhar Ahmed is currently facing charges
of “racially aggravated public order offences” after he posted an angry
Facebook status update about the reporting of the latest British Army
fatalities in Afghanistan. Racially motivated tweets posted relating to Stan Collymore and Fabrice Muamba have also been prosecuted under this legislation.The Protection Against Harassment Act 1997, which operates slightly differently in England and Scotland, prescribes that any two "acts" which form a course of harassing conduct can be charged as a crime. These provisions have been used successfully to charge trolls who send repeated upsetting or vile messages to users on sites like Facebook and Twitter. Nicola Brookes, eg, to great publicity, recently won a Norwich Pharmacal order against FB to start procededings under the 1997 Act against her online trolls. An Adjournent Debate in Parliament on 17 September 2012 noted not only these but also the possibilities of using the Public Order Acts and the Computer Misuse Act. Private civil damages can also be obtained both under the PAHA and by common laws like libel. All these options are well known and recorded in CPS guidance.

Most notably the Malicious Communications Act 1988 still exists (unlike the 1984 Act s 43, which s 127 replaced) though it does not extend beyond England and Wales,. Again though a pre-Internet statute, it was updated in 2001 by an amending Act to apply to "electronic
communications" - oral or otherwise, and not just therefore applying to the poison pen
letters which seem to have been the initial target. But the 1988 Act prescribes that the communication must be "sent to another person". It does not anticipate or apply to broadcast or one-to-many communications. These would have been the topic of the bradcastiong laws. And the ease with which a private individual can nowadays be their own broadcaster using only a Twitter account would not of course have occurred to the 1988 legislator. So the 1988 Act would not apply to Paul Chambers telling the world about his frustration at Doncaster Airport nor (say) the racists bullies who left tweets for Fabrice Muamba.

So, going back to LJ Bingham in Collins, in para 7 he observes the existence of the 1988 Act and thus deduces that the purpose of s 127 is "not to protect people against receipt of unsolicited messages which they may find seriously objectionable". Instead, it is "to prohibit the use of a service provided and funded by
the public for the benefit of the public for the transmission of
communications which contravene the basic standards of our society".

This history can clearly be seen of course in the preceding ancestor statutes - which originate from a time of state monopoly services over post and phone. What LJ Bingham seems to be acknowledging is that s 127 as formulated way back when, was about not wasting public money on transmitting material which was unpleasant. As such, the words used forbid categories of speech which would now be permitted speech in public using the Handyside test - or to put it another way, would be allowed in any pub or park. The proximate reason s 127 is more restrictive than the ordinary law on speech not via electronic means, is because it involved a public facility such as the postal service, or later, BT.<

Except now it doesn't, or only very tangentially. Twitter is a private service run on private servers. So is Facebook. People use the Internet to access it, which, yes, involves (sometimes) use of the facilities of former public utilities, but in essence, the experience of tweeting is as privately funded now as the experience of walking into M & S. In #TwitterJokeTRial, this point was raised but the position of the lower courts inChambers that a tweet is sent via a "public electronic communications network" , was upheld . There Crown Court Judge Davies agreed that "the fact that [Twitter] is a private company is in our view irrelevant" and "the mechanism by which [the tweet] was sent was a public electronic network and within the statutory defuinition... Twitter as we all know is widely used by individuals and organisations to disseminate and receive information,, it is inconceivable that grossly offensive, indecent, obscene or
menacing messages sent in this way would not be potentially unlawful"
(para 23, [2012] EWHC 2157). Pangloss, I'm afraid, has to diagree. If certain mesages shouldn't be broadcast to the public at at large because they are beyond what is allowed by Handyside then they should be specifically provided for - by acts like the Race Relations Acts and the PAHA . There should not be a general ticket to restrict speech online which would be lawful offline.

This, in my view, is the nub of what has gone wrong with s 127 lately. Statute law designed:

(a) primarily to regulate one-to-one communications, rather than one to many (whatever LJ Bingham said, it is clear almost all the wording of s 127 comes directly from statutes mainly intending to deal with malicious one-to-one phone calls or letters) and
(b) designed to safeguard a public utility built with public money

is now being applied to a privately owned, publicly accessed, many-to-many domain where, everyone agrees, the normal laws of the land relating to freedom of speech should apply - except that's just not how s 127 is written; and interpreting it to come out that way, for both prosecutors, defense lawyers, and ordinary folk, is a bloody and increasingly hard task.

There is an obvious way forward. Abolish s 127 with all its ambiguities and loose wording and extend the Malicious Communications Act to apply to the whole of the UK. That deals with one to one abusive electronic communication. Then stop, and have a decent debate about how to alter norms of behaviour on social media to reflect a civilised world - a debate which Pangloss suspects, will have almost nothing to do with law.